The Helen Suzman Foundation responds to Government’s comments on the passing of the Hawks Bill

The Helen Suzman Foundation notes that the National Assembly has passed the South African Police Services Amendment Bill, aimed at complying with the Constitutional Court's judgment in the Glenister case. In Glenister, the Court declared chapter 6A of the SAPS act, which established the Hawks, to be invalid and unconstitutional for failing to provide the Hawks with adequate independence to effectively fight corruption.

The HSF, which was amicus curiae in the Glenister case, is currently analysing the Bill to determine whether or not it does comply with the Constitutional Court's judgment.

Of more immediate concern, however, are remarks made by Minister of Police Nathi Mthethwa and the Chair of the Portfolio Committee on Police, Sindi Chikunga, about the Bill.
First, the Minister said that "… contrary to what has been projected by some members of the opposition and certain so-called legal experts, the Constitutional Court in its judgment indicated that the creation of ‘a separate crime fighting unit within the South African Police Service was not in itself unconstitutional.’ The tone of this reference to "so-called" legal experts is unbecoming.

Further, the HSF at no stage, in its written or oral submissions to the Portfolio Committee on Police, denied that the judgment said that "a separate crime fighting unit within the South African Police services was not in itself unconstitutional." According to the HSF the argument that location in the SAPS is unconstitutional was not made before the Court in Glenister, and the Court's comment was obiter.
Second, the Minister says that the process of drafting this legislation began in April 2011 and included a serious review of the Court's ruling and its actual implications, a review of international approaches regarding such organized crime and corruption fighting mechanisms, a serious review of different options, and extensive consultations with National Treasury and the DPSA regarding what models would work best.

What the Minister fails to mention is that the SAPS Amendment Bill which was initially published as a consequence of this intensive review was not the same one that was voted on yesterday.

The Bill that was the result of these 10 months of work was published without announcement on 24 February, and gave interested parties only 4 weeks to conduct their own intensive reviews and submit written comments to the Portfolio Committee on Police.

The overwhelming majority of these written comments, as well as 20 of the 21 oral submissions to the Committee, argued that the original version of the Bill did not comply with the Court's judgment. The Committee Chair assured the submitting parties their comments would be taken into account. It is some of these incorporated comments, which have vastly improved the quality of the final Bill, which the Minister refers to as being submitted by "so-called legal experts."

The Chair of the Portfolio Committee on Police, Sindi Chikunga, is reported as having said that those who threatened to take the legislation back to court should do so because it would only serve to confirm that it was now constitutional and, "The sooner it happens the better for all of us." This triumphalist tone is inappropriate in the position of a chair tasked with such serious responsibilities. Ensuring that South Africa has the best possible corruption-fighting unit is vital given corruption’s destructive role in retarding the development of the state.

The Helen Suzman Foundation does not take litigation in the Constitutional Court lightly, and would only consider referral to the Court if its analysis determines that a referral is likely to succeed and, more importantly, would be in the best interests of the South African people.

24 May 2012